Employment & Labor Law Issues in Florida

Author: Mary Meeks, P.A.

You can probably be fired because your employer doesn’t like the jeans you wear, but you cannot be fired because your employer doesn’t like the genes you inherited. You may know that Florida is considered an “at will” employment state, where employers can fire employees at will – at any time, for any reason – with some limited exceptions. You probably are aware that state and federal anti-discrimination laws prohibit employment discrimination on the basis of race, sex, national origin, religion, age, and disability. But did you know that federal law prohibits discrimination on the basis of your genetic information? That’s right – it’s illegal to fire someone (or take other adverse actions) simply because they have or may be genetically predisposed to inherit a disease, medical condition, perceived “defect” or other trait deemed undesirable by an employer.

The Genetic Information Nondiscrimination Act (“GINA”) took effect November 21, 2009, to prevent potential abuse of genetic information to discriminate in health insurance and employment. Despite the many positive advances that have resulted from groundbreaking genetics research, the United States has a dark history attached to early genetics research. The early science of genetics became the basis of State laws that provided for the sterilization of persons having presumed genetic “defects,” the first passed in Indiana in 1907. By 1981, a majority of States had adopted sterilization laws to “correct” apparent genetic traits or tendencies. Because some genetic traits are most prevalent in particular racial and ethnic groups and genders, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. The recent explosion in the science of genetics, and the history of sterilization laws by the States based on early genetic science, compelled Congress to implement protections as it relates to employment (in Title I) and health insurance (Title II).

In passing GINA, Congress relied on examples of genetic discrimination in the workplace, where employers instituted procedures seeking information about undesirable “defects” or “abnormalities,” or predisposition to future defects, in their employees. The statute specifically references the use of pre-employment genetic screening that was at issue in the seminal lawsuit of Norman-Bloodsaw v. Lawrence Berkeley Laboratory. This suit was brought by 7 current and former employees of Lawrence Berkeley Laboratory (LBL), a research facility operated by the Regents of the University of California pursuant to a contract with the U.S. Department of Energy. The Department required its contractors such as LBL to perform “preplacement examinations” which included testing of all applicants for syphilis, testing of black applicants for sickle cell trait, and testing of women for pregnancy. Another significant example occurred at Burlington Northern Santa Fe Railway Co., which secretly tested workers for a genetic defect that can predispose a person to carpal tunnel syndrome, and also screened workers for common genetic precursors for diabetes and alcoholism.

Pursuant to GINA, protected genetic information includes an individual’s genetic tests, the genetic tests of family members, and the manifestation of a disease or disorder in family members of such individual (i.e family medical history) – basically a person’s genetic characteristics or any piece of medical history. Protected information does not include information about the sex or age of an individual. GINA applies to employers, employment agencies, and labor organizations, and makes it unlawful for these entities to discriminate against an employee with respect to any term or condition of employment or to otherwise adversely affect the status of an employee because of the employee’s genetic information; or for them to request, require or purchase genetic information with respect to an employee or a family member of the employee (with some limited exceptions such as FMLA compliance); and requires confidential treatment of an employee’s genetic information. GINA also makes it unlawful to harass an employee regarding their genetic information, and to retaliate against an employee who complains about or makes a claim for genetic discrimination. Employees cannot be pressured to “voluntarily” make their genetic information known to their employer, even for purported positive purposes, such as an employer wellness program, and cannot be punished for refusing to participate in such a voluntary program.

GINA explicitly adopts the procedures and remedies made available under Title VII of the Civil Rights Act as it relates to discrimination claims on the basis of race, color, sex, national origin, and religion (beginning with filing an administrative charge with the Equal Employment Opportunity Commission). Successful claimants can recover pecuniary damages, emotional distress damages, potentially punitive damages, as well as recovery of attorneys fees and court costs.

GINA has been in effect for over 8 years, and the EEOC receives increasing numbers of claims for genetic discrimination every year, but there is a perception that such claims are underreported because of a lack of awareness of the protections provided by GINA. The New York Times recently published an editorial bemoaning the purported lack of any federal protections for employees’ health data, completely ignoring GINA! So now you know something that the New York Times apparently does not know:

An employer may never use genetic information to make an employment decision.

Protect your genes.

Mary Meeks has practiced law in Central Florida for nearly 30 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry. She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation. For more information, www.MaryMeeksLaw.com

A recent decision from the 11th Circuit Court of Appeals, which governs federal cases filed in Florida, clarified that the federal statute that governs age discrimination cases (the “Age Discrimination in Employment Act”) allows an employee to bring an age discrimination claim even where the employee was replaced by someone within the same protected age group. The ADEA prohibits employers from firing or otherwise discriminating against employees who are 40 years or older because of their age.

In Liebman v. Metropolitan Life Insurance Company, Liebman was 49 years old and had been working for Metlife for 28 years when he was fired and replaced by someone who was 42 years old. The District Court granted summary judgment against Liebman, holding that he could not allege a viable claim for age discrimination because his replacement was over the age of 40 and therefore also a member of the ADEA’s protected class. The appellate court, citing U.S. Supreme Court precedent, reversed this ruling, noting that “the fact that one person in the protected class has lost out to another person in the protected class is irrelevant so long as he has lost out because of his age.” The proper inquiry is whether the plaintiff was replaced by someone “substantially younger.” The appellate court noted that the 7-year age difference between Liebman and his replacement had been found to meet the standard of “substantially younger” in prior court precedents. In fact, age differences of as little as 3 years have been found sufficient to satisfy this standard. Meeting this threshold standard does not guarantee victory for Liebman, but it does mean that he has stated a viable claim for age discrimination, and Metlife must come forward and articulate alleged “legitimate business reasons” for Liebman’s termination. Liebman will then have to prove that those articulated reasons are mere pretexts for discrimination against him because of his age.

The ADEA differs from other federal discrimination laws in this and other respects. Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees based on their race, color, religion, sex, or national origin. (“Sex” discrimination under Title VII has recently been expanded by some courts to include sexual orientation and/or gender identity, and separate federal statutes prohibit discrimination based on pregnancy and disability.) In these cases, a plaintiff cannot state a viable claim where their replacement is within the same protected class, i.e. where a fired female employee is replaced by a female employee. The ADEA also covers employers with 20 or more employees whereas Title VII covers employers with 15 or more employees. The ADEA originally capped its protections at 70 years of age, but this upper parameter was later removed. There are some exceptions to the ADEA’s protections, such as where there is a “bona fide occupational qualification” related to age, for example where a young actor is required to portray a young character, or for safety reasons in hazardous professions. The ADEA also prohibits mandatory retirement ages (with some limited exceptions), and prohibits employers from retaliating against an employee who complains of age discrimination.

Below is an article in the Daily Business Review featuring my commentary on the Liebman decision:

Mary Meeks has practiced law in Central Florida for nearly 30 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry. She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation. For more information, www.MaryMeeksLaw.com

The Equal Employment Opportunity Commission, the federal agency that administers the federal anti-discrimination laws, just issued a landmark ruling holding that the federal anti-discrimination law (Title VII) that prohibits “sex” discrimination inherently also prohibits discrimination on the basis of sexual orientation. This is definitely an exciting development that will help move the nation closer to having protections for gays and lesbians from employment discrimination. But to be clear, this is neither a “new” development, nor a cure for anti-gay discrimination in employment.

First, the EEOC issued a statement back in February announcing this policy change, that the EEOC would henceforth interpret Title VII “sex” discrimination to encompass sexual orientation discrimination, and since then has been accepting and investigating complaints of sexual orientation discrimination. The significance is that this is the first application of that new policy pronouncement to an actual case that was litigated within the EEOC system. The EEOC handles litigation of discrimination claims made by federal employees against their federal employers, and investigates but does not generally litigate discrimination claims against private employers. In private cases, after the EEOC completes it’s investigation, if it is not able to persuade the parties to voluntarily resolve their dispute, then the employee is given the right to sue in court for resolution of the claim.

Second, currently no court outside of the EEOC is required to follow this ruling. This ruling by the EEOC is considered “persuasive” authority on future courts that address the issue, but it is not “binding” on those courts – any given court may choose to follow the EEOC ruling or reject it. And different courts could rule different ways, as happened with the marriage equality decisions, resulting in splits of authority among states that could only be resolved by a US Supreme Court decision. There are already numerous Circuit Court rulings that reject the argument that Title VII covers sexual orientation, and those rulings ARE binding on all courts within those circuits unless and until those courts reverse those decisions or they are reversed by the Supreme Court. Also, because the EEOC is a politically-appointed body, a future Commission, potentially appointed by a Republican president, could reverse this decision and the underlying policy pronouncement.

So, this ruling advances the cause, but there is still a long way to go before this ruling becomes the “law of the land.” Full protection for gay and lesbian employees will occur only by bringing legal challenges in courts to facilitate the opportunity for more and more courts to adopt the EEOC ruling, or by the passage of explicit federal and state legislation.

Mary Meeks has practiced law in Central Florida for over 25 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry. She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation. For more information, www.MaryMeeksLaw.com

Gay and lesbian Americans can now marry, but they, like the entire LGBT community, can also be potentially fired or refused service at a restaurant, hotel or countless other public places just because they are lesbian, gay, bisexual or transgender.

The decision rendered by the U. S. Supreme Court on June 26, 2015 establishing marriage equality as the law of the land was a monumental and historic advancement for LGBT equality. Gay and lesbian couples in all 50 states now have full and equal access to marriage and all of its attendant rights, benefits, protections, and validation of their human dignity. But what protections exist for those happy couples in the context of their employment, in their housing, and in public accommodations? The answer to that is a mixed bag.

Currently sexual orientation and gender identity are not characteristics that are explicitly covered by the federal anti-discrimination laws, nor by the Florida anti-discrimination laws. However, some protections do exist:

Many local jurisdictions in Florida have enacted human rights ordinances that prohibit discrimination against LGBTs in employment, housing, and public accommodations (restaurants, retail stores, hotels, public arenas, etc). These jurisdictions include Orange, Volusia, Miami-Dade, Broward, Palm Beach, and Hillsborough Counties. In these jurisdictions, it is illegal to fire someone, or deny housing to someone, or deny a public service to someone, because they are LGBT. If this happens to you, there are legal remedies that you can pursue on the local level.

President Obama has enacted an Executive Order that prohibits discrimination against LGBTs who work for the federal government. Each federal agency has its own equal employment opportunity (EEO) office to administer these protections.

President Obama has also enacted an Executive Order that prohibits discrimination against LGBTs who work for any company that contracts with the federal government. The federal government administers these protections.

Although the federal and state employment discrimination laws do not explicitly cover sexual orientation and gender identity, the Equal Employment Opportunity Commission (the federal agency that administers the anti-discrimination laws) has recently interpreted the applicable federal law to cover sexual orientation and gender identity. So currently you can file a charge of discrimination with the EEOC against your employer for discrimination/harassment based on your sexual orientation or gender identity.

The federal Fair Housing Act does not specifically include sexual orientation and gender identity as prohibited bases. However, housing providers that receive HUD funding, have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, may be subject to HUD program regulations intended to ensure equal access of LGBT persons. In addition, HIV/AIDS is protected under the Fair Housing Act as a disability.

Contact Attorney Mary Meeks to find out about your rights, or to make sure that your business is complying with these laws.

Mary Meeks has practiced law in Central Florida for over 25 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry. She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation. For more information, www.MaryMeeksLaw.com

Workplace harassment is illegal if it is based on protected characteristics covered by federal, state, or local anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA). But how is harassment legally defined?

Offensive conduct in the workplace that is based on race, color, sex, age, religion, national origin, disability, or even genetic information, can be unlawful harassment if it is considered “severe” or “pervasive.” Petty or isolated instances of harassment are not usually considered unlawful. However, if harassment creates an abusive or hostile work environment, then that harassment has crossed a line and is illegal. It is also illegal to harass or retaliate against an individual who has made a claim of unlawful harassment.

Name-calling, telling dirty jokes, making physical threats, or posting offensive pictures are just some forms of workplace harassment. The perpetrator of the harassment can be any supervisor, coworker or even a non-employee, and the victim can be anyone in the workplace who is offended, not just the direct victim who is targeted.

Another form of unlawful harassment is referred to as quid pro quo sexual harassment. This is the classic scenario where employment, or terms and conditions of employment, are conditioned on an employee’s acquiescence to demands for sexual favors.

Employers can protect themselves from harassment charges by taking preventive measures in the workplace. Clearly communicate what is, and is not, acceptable conduct; provide an effective grievance process for victims; provide harassment training to managers and employees; and create a workplace environment that encourages the reporting of unacceptable behavior. Without taking specific measures to discourage, halt or address workplace harassment, an employer can be financially liable for it.

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. [U.S. Equal Employment Opportunity Commission]Many women are routinely fired, demoted, harassed or forced out of their jobs when they become pregnant. This workplace discrimination continues despite the passage – way back in 1978 – of the PDA. Pregnancy discrimination is illegal in the United States.

The Pregnancy Discrimination Act forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. It is also unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The law requires employers to provide pregnant women with reasonable accommodations if needed – just as they provide reasonable accommodations to other temporarily disabled employees. Not all pregnant women require accommodations. But those women who do strenuous or hazardous work, or who have physically taxing assignments or must stand for long periods of time, sometimes need simple modifications to continue their work without harming themselves or their pregnancies. The PDA demands that employers make reasonable accommodations to them.

Even in 2015 pregnancy discrimination continues. If you are an employee who has experienced workplace discrimination, or an employer who wants to make sure you don’t violate the law, please call and schedule a consultation. www.MaryMeeksLaw.com

For employees in Florida, there are laws in place at the federal, state, and some local levels that prohibit discrimination against employees based on certain protected categories. These laws are not always uniform and can be confusing. The primary federal anti-discrimination law is Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, color, religion, sex, and national origin (as well as retaliation for making complaints of discrimination). The Americans with Disabilities Act and Age Discrimination in Employment Act are federal laws that provide similar protections to employees on the basis of age and disability. The state anti-discrimination law in Florida is the Florida Civil Rights Act, which similarly prohibits discrimination on the basis of race, color, religion, sex, national origin, age, handicap, and retaliation, but also includes marital status. “Sex” under these laws includes pregnancy, and includes sexual harassment.

In order to make a claim under these federal and state laws, employees must timely file complaints with the administrative agencies that were created to enforce these laws, the Equal Employment Opportunity Commission and the Florida Human Relations Commission, before they have the right to file a lawsuit in Court. Generally, complaints in Florida are “co-filed” with both agencies. In that case, employees have 300 days from the date of the discriminatory act to file their complaint. Although neither the federal or state anti-discrimination laws explicitly cover sexual orientation or gender identity, the EEOC has interpreted Title VII to cover these categories, and accepts and investigates claims made on these bases.

Some local municipalities in Florida have passed their own anti-discrimination laws, commonly referred to as Human Rights Ordinances. Such HROs currently exist in local jurisdictions that cover more than half of the population of the state of Florida, including in Orlando and Orange County and other Central Florida locales. The specific content of these local HROs varies among jurisdictions. However, some of their distinguishing features are that they typically explicitly cover sexual orientation and gender identity (and sometimes other additional categories such as marital status and familial status), and they often do not require filing first with an administrative agency before filing a lawsuit. www.MaryMeeksLaw.com